Peace All
I think brother diwana is being misunderstood. I think Jafri’s insight is quite useful here.
Let’s replace the word “rape” with “surprise sex” … woah please be patient with me …
Surprise is either shocking or amusing, so let’s say there is:
amusing surprise sex and shocking surprise sex
Ok now sex should have a general consent in place in Islam and other faiths a marriage represents the general consent for sex, people following other frameworks have less tangible forms of general consent, for example, they could tell people verbally “we are an item”, they could be seen together in public so others understand them to be together. They could share a bed together, i.e. they sleep in the same room in the same space on a regular basis or on the basis that does not give rise to concern to the public at large who are at ease with the idea of their joint status.
When general consent is in place:
We can say that amusing surprise sex - healthy sexual adventure (1)
We can say that shocking surprise sex - rough and unfair, which translates to injustice to the partner (2)
When general consent is not in place:
We can say that amusing surprise sex - fornication and both persons are morally wrong, (if one partner chooses there is a possible case for rape accusation but requires investigation) (3)
We can say that shocking surprise sex - true rape (4)
Now each of these will have different levels of penalties/compensations, refer to the number references below:
(1) - Islamically if the general consent is in marriage this would be rewardable activity, if not in marriage then this is a major sin called zina, otherwise as an act where general consent other than marriage is enough then this is permissible.
(2) - Islamically if the situation took place in marriage this would be frowned upon, it would be cause for marriage to be broken, the doer would be sinful for inflicting harm on another person, but would not be accountable to the degree of zina, because the ‘sex’ part of the act was legal it was the ‘rough’ part that wasn’t moral. Islamically if this happened where no marriage was in place even if general consent is there it would be considered as rape - see (4). In societies where general consent without marriage is enough then it can still be rape, which leaves the door open for alleged victims who have given general consent to create problems. This way the full punishment and dishonour may fall on a person convicted of rape. The possibility of injustice tending towards the accused increases as a result.
(3) - Islamically this is zina both are held accountable, in societies where general consent is enough, this is as though it is the same as (1).
(4) - Islamically this is rape, in societies where general consent is enough this would be called rape and the due punishment given to the rapist.
So even though (2) is wrong Islamically it is not the same as (4), “rape in marriage” should be called something else. Unjust sexual relations with wife or husband are not legally crimes in Shari’ah, but are moral ones and every moral crime is the cause for filing a divorce, there may even be an additional compensation that is required.
The case in question by OP would fall in either (2) or (3) and if (3) is proven then it could turn in to a (4) if enough evidence is available.
Thanks Jafri for the terminology, just in case it was copyright I gave reference to you …